Top 5 Infrastructure Takeaways from the Monarch Listing Proposal

After 10 years of review, the U.S. Fish and Wildlife Service (the Service) is proposing to list the monarch butterfly under the Endangered Species Act (ESA) as a Threatened species with 4(d) provisions. The Service is seeking public input on this proposal. ?

After reviewing the proposed rule, several key takeaways related to conservation and energy and transportation infrastructure are worth noting. While much more can be said about the proposed rule, here are a few key takeaways observed from an initial reading.?

1. The monarch listing proposal is just that - a proposal.?

Sounds obvious, right? However, some might confuse the Service’s announcement to be a decision. The proposed rule should not be considered final as it is subject to change before becoming a final rule. Public comments received and future overwintering population counts are likely to influence both the final listing status and rule content. ?

The Service invites public comment over the next three months (through March 12, 2025). After that, they will have the difficult task of reviewing and refining their proposal based on the input received. No restrictions take effect until after the proposal is made final, which will not likely occur until later next year or after. ?

2. So much conservation is happening. So much more is needed.?

More than other ESA listing proposals, the monarch proposal is written as an invitation to conservation, noting that all sectors of society can participate in conservation. The proposed rule emphasizes the role of public action and engagement as essential to monarch conservation, particularly in restoring milkweed across the landscape. ?

In the proposal, the Service acknowledged large-scale efforts like the Monarch CCAA, the Mid-America Monarch Conservation Strategy, the Western Monarch Conservation Plan, and the Monarch Conservation Database, and the work of many other conservation partners as positive steps toward monarch conservation. However, these efforts are currently not enough to prevent monarchs from becoming endangered in the near future. ?

Despite the interest and conservation already mobilized for monarchs, more conservation is needed to achieve recovery and prevent a listing. With this past winter’s overwintering counts in Mexico resulting in the second lowest monarch population numbers on record, we need to do more for monarchs (and many other species at-risk of extinction).?

3. The 4(d) provisions are vague on specific infrastructure and vegetation management actions that may be exempted.?

The proposed rule allows activities that maintain, enhance, remove, or establish milkweed and nectar plants, if these activities do not involve the conversion of native grasslands, shrublands, or forested habitats. Other exceptions include incidental take from implementing comprehensive conservation plans, maintaining or improving overwintering habitat, vehicle strikes, small-scale monarch collection, captive rearing, and release, scientific research, educational activities, possession of dead monarchs, and the sale of captively reared monarchs.?

The proposed rule includes 4(d) provisions that allow a few exemptions for certain activities related to energy or transportation land management:??

• Activities covered by implementation of comprehensive conservation plans and programs (such as the Monarch CCAA),?
• Habitat restoration and management activities, such as mowing and haying native rangeland, that sustain monarch butterfly habitat,??
• Vegetation management activities that control invasive plants or noxious weeds as part of site preparations or habitat enhancement activities.?

The Service notes that they wish to avoid, “permitting requirements for take associated with many types of habitat modification in the proposed 4(d) rule” to “encourage projects that will increase the quality and quantity of breeding and migratory habitat for monarchs.” How this relates to specific activities that routinely occur on energy and transportation lands is unclear from the proposal. The proposed 4(d) provisions do not appear to allow exemptions for many routine vegetation management, maintenance, and construction activities. This is an area lacking detail that will hopefully be clarified in the final rulemaking.?

4. Quiet consideration for pesticides.?

“Pesticides” is a broad term used to characterize insecticides, fungicides, and herbicides. Herbicides are the primary pesticide used on energy and transportation lands for vegetation management. While an essential tool for vegetation management, certain uses or formulations may negatively impact monarchs if not applied with care.?

The proposed rule acknowledges that certain pesticide uses can negatively impact monarchs, both directly and indirectly. However, the Service is notably silent on proposing any specific restrictions for any specific formulations or treatment methods. Instead, the proposal emphasizes the need for public comment on how to address pesticide use under a 4(d) rule. The Service notes the overlap with the Environmental Protection Agency's (EPA) work under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and a desire to avoid confusion or unnecessary burden. Again, this area is vague and likely to be heavily informed by public comment.?

5. The Monarch CCAA is a valuable tool for monarch recovery and supporting infrastructure.?

Big problems (like monarch declines) need big solutions. The proposed rule acknowledges the role of transportation and energy infrastructure in monarch conservation, particularly through initiatives like the Monarch CCAA. As of today, the Monarch CCAA has engaged more than 68 energy and transportation organizations across the U.S. to create habitat and conservation commitments across more than 1.1 million acres of monarch habitat (or about twice the area of Yosemite National Park). In exchange for implementing voluntary conservation efforts and meeting compliance requirements, businesses and agencies enrolled in the CCAA receive assurance from the Service that they will not have additional restrictions following a monarch listing.?

Enrollment in the Monarch CCAA is only available up until the effective date of a final listing rule. As I wrote in September, we anticipate any monarch listing rule to change over time. Once a final rule is issued, the monarch listing status may be subject to future changes resulting from continued population declines or legal challenges. Future changes may include modifications of 4(d) provisions or changes in listing classification. Enrollment in the Monarch CCAA insures against such future changes and provides energy and transportation organizations consistency and certainty in their operations. ?

What's Next??

As had been said before, monarchs are an indicator for so many other species and biodiversity at large. This listing proposal presents a new call to action. Finding ways to promote conservation while supporting essential infrastructure for energy and transportation (including water and data transmission) is more important than ever.?

The 90-day comment period opens on December 12, 2024 and will close on March 12, 2025. Information on how to submit comments can be found on?regulations.gov?by searching docket number FWS-R3-ES-2024-0137.?

Interested in the Monarch CCAA? Check out?https://rightofway.erc.uic.edu/national-monarch-ccaa/ ?

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